AGNEW & WOGAN AND ANOR - [2018] FamCA 277

FAMILY COURT OF AUSTRALIA

AGNEW & WOGAN AND ANOR

[2018] FamCA 277

FAMILY LAW – CHILDREN – Where the father has disengaged from proceedings – Where the father is incarcerated – Where it is appropriate for the matter to proceed undefended – Where the mother makes allegations of serious family violence – Where the mother alleges the child has mental health problems – Where the father has perpetrated family violence against the mother – Where the father poses an unacceptable risk of psychological harm to the child on the basis of exposing the child to family violence – Where the father’s parenting capacity is unknown – Where there are serious concerns about father’s ability to care for the child – Where it is not in the child’s best interests to have contact with the father – Orders made for the child to live with the mother and spend no time with the father – Orders made restraining the father from contacting or approaching the mother and child.

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 69ZN
Family Law Rules 2004 (Cth) r 16.07

G & C [2006] FamCA 994
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

APPLICANT:

Mr Agnew

RESPONDENT:	Ms Wogan
SECOND RESPONDENT:	Ms Agnew

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Parramatta Family Law

FILE NUMBER:

PAC

3478

2016

DATE DELIVERED:

24 January 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

24 January 2018

REPRESENTATION

THE APPLICANT:

No appearance

SOLICITOR FOR THE RESPONDENT:	Family Focus Legal Pty Ltd
SOLICITOR FOR THE SECOND RESPONDENT:	Claremont Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Parramatta Family Law

Orders

The mother, Ms Wogan, shall have sole parental responsibility for the child B born on … 2014.
The child shall live with the mother.
The father, Mr Agnew shall not spend time with or communicate with the child.
The mother is restrained from permitting or causing the father to spend time with or communicate with the child.
The mother shall continue her engagement with C Group for as long as that service considers it to be necessary and shall accept and act upon any referrals provided by C Group.
The mother shall ensure that the child attends all appointments associated with his speech and psychological needs and shall follow all recommendations of his treaters.
Pursuant to s68B of the Family Law Act 1975, the father shall be and is hereby restrained from contacting or approaching, or attempting to contact or approach the mother or the child by any means whatsoever, including through any third party and the father is further restrained from:-
(a) Attending at, or being within 100 metres of any place of residence of the mother at any time;
(b) Attending at, or being within 100 metres of any school, pre-school or childcare facility attended by the child at any time.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AGNEW & WOGAN AND ANOR

Details

AGLC: AGNEW & WOGAN AND ANOR [2018] FamCA 277
Case: [2018] FamCA 277
Decision Date: 24 January 2018

CaseChat Overview and Summary

In the matter of *Agnew & Wogan and Anor*, Hannam J of the Family Court of Australia considered a dispute between the parents of a child, B, concerning parental responsibility, living arrangements, and contact. The proceedings involved the mother, Ms Wogan, and the father, Mr Agnew.

The court was required to determine the appropriate orders regarding the child's residence, the allocation of parental responsibility, and the extent of any contact between the father and the child. Additionally, the court considered the need for protective orders to ensure the child's safety and well-being, as well as the mother's ongoing engagement with support services and the child's therapeutic needs.

Hannam J ordered that the mother have sole parental responsibility for the child and that the child live with the mother. The father was prohibited from spending time with or communicating with the child, and the mother was restrained from permitting such contact. Furthermore, the father was restrained, pursuant to s 68B of the *Family Law Act 1975*, from contacting or approaching the mother or the child by any means, including through third parties, and was prohibited from attending within 100 metres of the mother's residence or the child's school or childcare facilities. The mother was also directed to continue her engagement with C Group and to ensure the child attended all appointments related to his speech and psychological needs, following the recommendations of his treaters.

Orders

Orders of the court

The mother, Ms Wogan, shall have sole parental responsibility for the child B born on … 2014.

The child shall live with the mother.

The father, Mr Agnew shall not spend time with or communicate with the child.

The mother is restrained from permitting or causing the father to spend time with or communicate with the child.

The mother shall continue her engagement with C Group for as long as that service considers it to be necessary and shall accept and act upon any referrals provided by C Group.

The mother shall ensure that the child attends all appointments associated with his speech and psychological needs and shall follow all recommendations of his treaters.

Pursuant to s68B of the Family Law Act 1975, the father shall be and is hereby restrained from contacting or approaching, or attempting to contact or approach the mother or the child by any means whatsoever, including through any third party and the father is further restrained from:-

(a) Attending at, or being within 100 metres of any place of residence of the mother at any time;

(b) Attending at, or being within 100 metres of any school, pre-school or childcare facility attended by the child at any time.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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